Need for and purposes of this handbook

Making available knowledge of options for the processes of constitution-making and reform

Until now there has been nothing like this handbook available to constitution-makers. Since the end of the Cold War in the late 1980s, there has been a dramatic increase in constitution- making, in large part aimed at ending violent conflict or deep divisions. Yet constitution-makers and international constitutional-assistance actors have had little guidance or information about the process of making constitutions, the wide range of past experience of constitution-making processes in both postconflict situations and more generally, and the range of possible outcomes. Anyone contemplating what might be involved in designing, starting, and carrying out a process of constitution-making could look at case studies of particular processes and comparative academic analyses of a few particular institutions or procedures. But there are thousands of design, implementation, and other choices involved in developing a process, especially where such difficult goals as conflict transformation and resolution are involved. Yet until now there has been nowhere for a constitution-maker to explore practical knowledge about the range of tasks and institutions that might need to be considered as part of such a process.

We have been in the shoes of such constitution-makers. Among us, we have been involved in leading or advising dozens of constitution-making processes. We have had to learn on the job— sometimes from one another or from other practitioners—but without the knowledge of the full range of options and relevant experiences from the last forty years of constitution-making.

This handbook attempts to meet that need. Much of the knowledge required to prepare it was not available in the academic literature. To survey the range of options and experiences in constitution-making, we conducted workshops and interviews over a period of three years with more than 120 practitioners and academics from every region and from dozens of countries.

Although constitution-making processes often have unique contexts, procedures, and bodies, this handbook identifies the myriad tasks that need to be carried out, the variety of institutions and procedures that can be used to carry out those tasks, and who can do them. It also discusses the opportunities and dilemmas sometimes involved in carrying out specific tasks or using particular institutions. This handbook is not about the contents of a constitution (about whether to have a presidential system or a parliamentary one, whether to have a right to food, or an audit court, and so on), but just about the processes that can be used to make the decisions about contents.

The handbook emphasizes the goal of making a constitution in a democratic, participatory, transparent, inclusive, and representative way while underscoring the deeply political nature of constitution-making and the risks and opportunities that relate to applying these principles in a sensitive manner at each step in the process. For example, the promotion of dialogue and debates on constitutional issues may be helpful in some contexts but could derail the process at an early stage in a deeply divided society where such discussions could increase levels of polarization.

At the same time, the handbook emphasizes that there is no single correct way of designing a constitution-making process. There are endless variations in the tasks carried out, the sequence in which they are executed, and the institutions and processes involved in getting that work done.

The handbook pays particular attention to the special needs of constitution-making processes intended to end violent conflict, or to contribute to reconciliation and consensus in otherwise deeply divided societies. It alerts readers to both the opportunities and the dilemmas that are peculiar to constitution-making in conflict or postconflict situations. And it emphasizes that the constitution-making process will not serve so constructive a role as it might unless peacebuilding opportunities are maximized and constraints overcome. For example, we note that in a conflict or postconflict context the designers of the process may need to consider the purposes of a process other than simply creating the framework for governance and adopting a constitution, such as:

identifying the underlying societal issues and defining the agenda for reform;

developing a national consensus on the goals of the constitution;

resolving outstanding national or regional issues and difficulties;

promoting a national identity (a particular problem in multiethnic states);

educating the people in principles of democratic theory as well as democratic practice— through the experience of making a constitution in a deliberative and participatory fashion;

ensuring wide public participation in the process and knowledge of the constitution—in part to facilitate its implementation, protection, and legitimacy;

negotiating entry into the international community; and

transitioning to a democracy, civilian rule, or social justice.

Another goal of this handbook is to bring a particular focus to the importance of the processes by which constitutions are made. There is much study (by constitutional lawyers and political scientists, among others) of the effect on conflict and deep division of choices on the content of constitutions. There has so far been limited research on the impacts of constitution-making processes, either on conflict resolution and reduction of deep divisions or on the success or failure of constitution-making more generally (for example, as when observers might attempt to measure success by longevity). As discussed further in part 1, the little research done to date has so far not provided the evidence that permits prediction of effects arising from the use of one procedure over another or in particular combinations. Some scholars have broadly noted that more democratic processes tend to produce more democratic constitutions, and that the more representative the constitution-making body, the greater the likelihood that the country will not return to violence.

The lack of such evidence is related to the immense variety in both the shape of processes and the context in which the processes take place. Context alone tends to ensure that in any case there are multiple variables that have a great effect on the outcomes of a constitution-making process that cannot readily be taken into account in either evaluating a process or determining lessons from past processes when planning later ones. Such variables include culture, history, leadership, resources and economic activity, the nature of the conflict or division, numbers of languages, geography, and degree of strategic interest on the part of international actors. Another reason why an assessment of outcomes is difficult is that processes are often not so much designed as negotiated through intensely political interactions usually dominated by politicians and often behind closed doors. (See the discussion of this issue in part 1.) Extensive public participation can generate involvement of new actors, which can make what is often an ongoing series of negotiations about the process ever more unpredictable.

Accordingly, outcomes of a process or procedure may depend less on its design and implementation than on other dynamics: whether political leaders or spoilers derail the process; the levels of resources available for the process; the availability of skilled political leaders or negotiators; a change in the international community’s agenda or commitment to the process; and the cost of failure (for example, whether it might mean a return to war); and the like.

Even determining what is a “success” or a “failure” for a constitution-making process is difficult. A legitimate constitution may be an element of success. But who defines what is a “legitimate” outcome, and how is this measured? Longevity of a constitution may be seen as a measure of success of the process that adopted it. But many people assert that constitutions made to assist in the transition from war to peace may succeed in that role at that time, but then need to be changed to meet the needs of more stable times. It may also be difficult to link longevity to procedural or implementation choices. A constitution may be short-lived for reasons little related to the process by which it was made. Moreover, a process that does not result in a constitution may set the stage for future constitutional reform and more democratic institutions and practices. For example, extensive civic education in a “failed” process may lead to demands for a consensus-based constitution in the future, or even have positive impacts on constitutionalism under the existing constitution.

Despite the lack of evidence about the effects of constitution-making processes and procedures, there are clear trends toward new standards in such processes and general principles about what may support a more durable peace in conflict and postconflict contexts. As discussed further in parts 1 and 2, this handbook places a particular emphasis on public participation, which is closely connected to gradually broadening concepts of people’s democratic rights. There are other broad principles of constitution-making—inclusiveness, representation, transparency, and national ownership—that, together with public participation, are seen by some as part of a “new constitutionalism.” Those principles and their potential benefits are discussed toward the end of this section.

The intended audience for the handbook

Our intended readers include anyone who may be engaged in a process or who is interested in improving constitution-making practice. They could include members of constituent assemblies or constitutional commissions, government officials, politicians, civil society, activists, donors, foreign advisers, policy analysts, academics, and international-aid actors. We have tried to cover a wide range of issues, ideas, experiences, problems, and successes, and to provide practical tips, in the hope that the book will be helpful to the greatest possible range of people.

Although we have prepared this handbook to be of use to a wide audience, we pay special attention to the needs of the reader undertaking a constitution-making process in a conflict or postconflict country. Divided societies face unique challenges in achieving a consensus-based constitution. Mistrust may be endemic among communities or between new and old leaders. Spoilers may remain outside the constitution-making process or emerge as it proceeds. Leaders or institutions involved in the process may have fuelled the conflict. International actors may have assisted in promoting constitutional negotiations, but may also be exerting pressure for particular outcomes.

Our focus on conflict and postconflict situations does not mean we are ignoring any aspect of the tasks, procedures, and institutions found generally in constitution-making processes. Processes of constitution-making during or after conflict are as varied as they are in any other situation. However, our focus on constitution-making as a means for conflict resolution and transformation has led us to consider particular aspects more intensely. One example concerns interim constitutional arrangements, which can often play an especially prominent role in a postconflict process. It also means that we discuss the conflict issue at each step of the process, including the first decision: whether a new constitution should be prepared. In some cases, the process of creating an entirely new constitution may risk exacerbating or restarting the conflict.

The handbook as a tool in ongoing dialogue with constitution-makers

It is our hope that this handbook will become a tool in the continuing dialogue with a variety of practitioners and experts to improve constitutional practice. A key challenge in preparing this handbook was organizing the wide range of knowledge, experiences, and complex combinations of institutions, tasks, and procedures into a format that could be easily accessed and digested. For these reasons Interpeace has placed this first draft of the handbook on the Internet, for feedback and to promote continued discussion. After each section of the handbook on the website, there is a space for readers to provide comments. We would be grateful if readers would enlighten this first draft of the handbook with their experiences, observations, and suggestions with regard to the content and how to improve the accessibility of the material. In 2012 we will be providing a mechanism on the website whereby those involved in a process can get answers to their constitution-making questions.